The meaning and application of section 174(3) of the Constitution

by | Aug 15, 2011 | Public Interest Litigation Cases | 0 comments

Dear Mr President,

Your constitutional responsibility to appoint a new Chief Justice ought to be exercised “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”. These words are quoted from section 174(3) of the Constitution and are binding on you.

The consulting process so envisaged is rendered nugatory if you anoint a nominee before the process even begins. The idea of consulting in this non-binding way (as opposed to the consequences that would obtain if the wording were “in consultation with”) is to ascertain and be alerted to the candidates whom the JSC and the political parties have in mind, their fitness for the high office of Chief Justice and their merits and demerits as candidates BEFORE you make the appointment of your choice. By suggesting a nominee up front you are in effect reversing the bona fide order of business contemplated in the Constitution and you are thereby frustrating the purpose of the process laid down as well as conducting yourself in a manner that is inconsistent with the Constitution, on any proper and workable interpretation of section 174(3). As you know, conduct inconsistent with the Constitution is invalid under section 2 and falls to be set aside.

In order to remedy the situation in which you now find yourself, having made you preferred nominee known before arranging the consultations with the JSC and political parties, we call upon you to formally withdraw your nomination and give all interested parties the opportunity of making their nominations for consideration in the consultation process envisaged in the Constitution.

The Institute for Accountability in Southern Africa would like to propose the Deputy Chief Justice as a candidate for the Chief Justice position made vacant by the retirement of Chief Justice Ngcobo. His seniority, illustrious track record and experience as Deputy to two successive Chief Justices make him the ideal candidate for the position. He has the confidence of the Bench, impeccable credentials and is best positioned to lead its transformation and sustain its independence and impartiality.

Whether or not you accept the remedial action suggested above, we respectfully request that our proposal, if it is accepted by the Deputy Chief Justice, be considered during the consultation process.

This email is being copied to the JSC, the DCJ and political parties with whom you are obliged to consult so that they can consider their position in the light of its contents.

Kindly acknowledge receipt.

Yours truly,
Paul Hoffman SC
Institute for Accountability in Southern Africa

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