THERE appears to be some confusion in the media about the procedure that ought to be used to appoint a new chief justice. Reference has been made in reports to section 174 of the constitution which states in relation to the appointment of a chief justice that this takes place “after consulting the JSC [Judicial Service Commission] and the leaders of the parties in the National Assembly”.
It has been reported there is some contestation about the meaning of the term “after consultation”. Does this require that the president simply informs the different role-players of his decision as a mere courtesy or is he obliged to take their views into account?
The term “after consultation” requires the president to consult all the role-players in good faith, but he is not bound by their recommendations. This means that merely to inform them of his decision before consulting them would not suffice and would be unconstitutional.
In contrast when the president acts “in consultation with” it is required that such decision must involve the concurrence of the person or persons stipulated, provided that the concurrence can be expressed in accordance with the decision-making procedures of the body concerned. This is, for instance, the position in the cabinet, chaired by the president, that will seek unanimity for its decisions.
Although this is in accordance with definitions found in the interim constitution, which provided express definitions, these are not found in the 1996 constitution. There however is no good reason to question the use of these definitions in relation to the terms as used in the extant constitution.
President Jacob Zuma must therefore consult the JSC and the leaders of the parties represented in the National Assembly in good faith and not merely inform them of his decision. He is not bound by their recommendations and can make the appointment as he sees fit.
Failure to follow this procedure would be unconstitutional.
George Devenish, former professor of public law at the University of KwaZulu-Natal (Durban)