Professor Richard Calland has commented that, “Politically, the Judicial Service Commission has put Ramaphosa in a very difficult position and he now faces an even more awkward decision in which he will be damned if he does and damned if he doesn’t.” 

So far, the process towards the conclusion of the appointment of the next Chief Justice is going at a snail’s pace compared with other steps in the process, from public consultation and nomination to interviews conducted by the Judicial Service Commission (JSC). 

The lack of speed at which President Cyril Ramaphosa is finalising the appointment of the JSC nominee for a vacancy – or his choice, different from the recommendation by the JSC – is edging closer to becoming unprecedented. 

What can be the cause of the delay? Are political considerations playing a critical role in this delay? There have been cases in other jurisdictions, like the US, when political considerations influence the speed of the appointment. In particular, an assumption that the delay is caused by the President’s inclination to select someone “whose political or ideological views appear compatible with their own”. That is, avoiding nominees with ideological differences with the executive.  

One need not second-guess Ramaphosa. Anyway, politics has the ugly face of exaggeration and allowing people to dabble in claims that are sometimes aimed to morph into disqualification of the JSC nominee(s) for the position. The delay may be explained away. The delay, however, seems to be characteristic of the filling of vacancies in the Constitutional Court. 

Concerning the appointment of judges to the Constitutional Court, Judges Matter recently opined that making appointments to the Constitutional Court without unreasonable or unjustified delays “will at the very least confirm the President takes seriously his constitutional duties and his oath of office”.  

An argument of violating the oath of office may be predicated on section 174(3) of the Constitution, which provides that the President, as head of the national executive (which means with the support of the Cabinet), after consulting with the JSC and leaders of the political parties represented in the National Assembly, has to appoint the Chief Justice.  

Perhaps further, an argument that a delay in appointing the next Chief Justice places the President in the grey area of violating the oath of office may be viewed from provisions of section 83 of the Constitution. The provisions require the President, as the head of state and head of the national executive; to “uphold, defend and respect the Constitution as the supreme law of the Republic”. 

One glaring provision for the President to ensure compliance with is that the country’s judiciary must be headed by the Chief Justice, who has enormous responsibilities of ensuring just and legitimate administration of justice in the country. 

Section 165(6) of the Constitution mandates that “the Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts”.  

Acting appointments aside, the judiciary in South Africa has been without a substantive leader for an unreasonable length of time. Zikhona Ndlebe of Judges Matter, in a radio interview, suggested that the President’s hand may be forced through a court interdict to stop JSC interviews in April until the Chief Justice appointment is made.  

While pondering what is going on at the Union Building, the injustice of the delayed appointment of the Chief Justice must not be overlooked. I am indebted to the following passage from an article by Arghya Sengupta and Jay Vinayak Ojha, Judicial Appointments in India: From Pillar to Post, which may be relevant to the issue of delays in appointing the Chief Justice in South Africa with necessary qualification: 

“The Indian experience of judicial appointments is a cautionary tale. It is a lesson for lawyers, judges and policymakers in India that designing a system of appointments is a complex exercise involving a range of factors, both legal and political. Equally, it cautions other jurisdictions, which might have their controversies surrounding judicial appointments, that there is no single ‘right’ way to appoint judges to constitutional courts. Designing a workable appointments mechanism must be cognisant of the country’s constitutional history, its political climate, particularly the powers wielded by the judiciary vis-à-vis other organs of government and the popular sentiment of the citizenry towards those organs.” DM