While two recent landmark and unanimous full-bench high court judgments are welcome for their outcomes, there is a worrisome inconsistency in reasoning between the two.
In the review of the president’s decision to “dis-appoint” Mxolisi Nxasana as national director of public prosecutions the court, rightly so, ruled out the president as the appointer of a suitably qualified successor, given President Jacob Zuma’s pending 18 charges and the conflict of interest this engenders. The deputy president was ordered to do the necessary within 60 days. This order involves the interpretation of sections 90 and 96 of the constitution.
In the review of the public protector’s State of Capture report, Zuma’s attempt to impugn the remedial action that the chief justice appoint the judge to preside over a commission of inquiry into state capture was dismissed with punitive costs.
Perplexingly, the remedial action was not revised to direct the deputy president to get the commission of inquiry established. Is it really the task of the chief justice, who heads the judiciary, to do the essentially executive job of choosing the judge to head the inquiry? Doing so obviously disqualifies the chief justice from sitting in any case that comes the way of his court. The doctrine of the separation of powers militates against the use of the judiciary to perform functions given to the executive by the constitution. The appointment of a commission of inquiry is one of the functions for which the president is constitutionally responsible.
When he is unable to act due to the risk of a conflict of interest, the correct procedure is surely as in Nxasana’s case.
Paul Hoffman SC
Director, Institute for Accountability in Southern Africa
Letter published in Bdlive on 18 December 2017