Deadline for comment on Ngcobo appointment

After initially failing to consult with the leaders of the opposition parties in the National Assembly, as required by the Constitution, President Zuma sent two facsimiles to the DA's offices on 7 August, after he had announced his preferred candidate on 6 August. The first was backdated to 5 August, the second requested comment on his preferred candidate by 17 August (today).

Together with three other opposition parties - the Independent Democrats, the Congress of the People and the Inkatha Freedom Party - the Democratic Alliance sent a joint letter to the President, in response to his retroactive request for advice. That letter was sent on 10 August.

We have, to date, received no response to that letter.

The letter is significant because it contests the fact that the President's facsimile constitutes proper consultation, as required by the Constitution. It recommended that the President withdraw his statement that he had "appointed" Justice Sandile Ngcobo to the position of Chief Justice and suggested that the process be reconstituted.

There can be little doubt that the President failed to properly consult and is in violation of the Constitutional provision that he do so, for the following reasons:

• The nature of consultation requires that one party seek out the advice of another with the purpose of informing that party's decision. In order for this to happen, that advice must be sought with an open mind - to do so with preconceived outcome in mind is to defeat the purpose - and, following on from that, it must be sought out prior to announcing a preferred candidate.
• The fact that the President failed to seek that advice prior to announcing his preferred candidate means he did not consult with an open mind (and, by announcing a preferred candidate he limited the scope of the advice available to him). Both of these facts mean he compromised the consultation process.
• The fact that the President's mind on the matter was made up before he consulted is evidenced by three things:
  • First: his comment to the press on 6 August, prior to seeking the advice of the leaders of political parties, that "I have requested advice from the Judicial Services Commission and leaders of political parties represented in the National Assembly in this regard". In fact, he had not.
  • Second: his comment at the same event that "The fact of the matter is that I have appointed a judge that I believe is capable". This suggests that his mind was closed on the matter, even prior to consulting. And,
  • Third: the comment by the Presidency spokesperson Vincent Magwenya that "We cannot withdraw (the nomination). The (opposition) parties should advise... and engage the president on the nominee." If eliciting advice is designed to inform one's decision, then that advice must be able to shape the outcome. If the President was unwilling, as a default position, to change his preferred candidate, any advice is rendered redundant. Clearly the Presidency believed the decision had already been made and the outcome decided.

There can be little doubt that President Zuma never had any intention of properly consulting the leaders of opposition parties in the National Assembly, in the manner intended by the South African Constitution.

For the President ‘consultation' was merely a technicality to comply with, not a process designed to inform his opinion, which, as the evidence illustrates, was predetermined.

The consequence of this is profound. If the President does not consult properly - if consultation means informing other parties of his decision rather than engaging them on it - then the practical effect is that the Chief Justice is appointed solely at the discretion of the President. That situation 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.

This is not what the Constitution intended.

The DA will await the President's response to our letter. If it is not forthcoming, we will consider our position and the options available to us, in taking this matter forward.

Statement issued by Democratic Alliance leader, Helen Zille, August 17 2009

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