Mr. JG Zuma
Office of the President
Republic of South Africa
RE: APPOINTMENT OF THE DEPUTY CHIEF JUSTICE
1. This serves to respond to your letter dated 03 March 2017 in which you advised us of your intention to appoint Justice Raymond Zondo to the position of the Deputy Chief Justice to the Constitutional Court.
2. Conventionally, the general requirements for consultation is that consultation must comply with the following overarching obligations:
a) Consultation must be at a time when a proposal is at a formative stage.
b) The proposal must give sufficient reasons for the proposal to allow consultees to understand them and respond to them adequately.
c) The reasons for what is proposed by the consultor should include candid explanations of the factors or criteria which the consultor considers important in decision making.
d) The process must be substantively fair and have the appearance of fairness.
e) Consultation should be in good faith and not fait accompli.
f) Responses must be conscientiously taken into account in finalising the decision.
g) Where the consultor will not take into account the view provided, he should provide good reasons not to do so.
3. On behalf of the EFF collective, I reject this move for reasons which are set out hereunder.
3.1 The content of your letter does not suggest that your proposal is at a formative stage. I have reached this determination in that you have not provided sufficient reasons in support of the proposed name to allow consultees to understand them and respond adequately, except to mention that you are complying with the Constitution to “consult” us.
3.2 The process does not appear to be substantively fair, nor does it have the appearance of fairness. In all respect, it does not appear to be in good faith but rather to cajole leaders of political parties in a fate-accomplice manner. It does not appear that you will in any way provide good reasons for your decision, nor conscientiously take into account our views.
3.3 You have not provided candid explanations of the factors or criteria which you have considered important on the proposal you are consulting on.
3.4 The appointment of members of the judiciary is one of the major tools through which the judicial system and fraternity can be transformed. Furthermore, the appointment of members of the judiciary should be aligned with, and espouse constitutional values such as equality and the rule of law.
3.5 To this end, I wish to remind you of section 174(2) of the Constitution on the appointment of judicial officers which provides that:
“The need for the judiciary to reflect broadly the racial and gender composition of South Africa MUST be considered when judicial officers are appointed.”
3.6 The word “must” (as opposed to the word “may”) in this particular instance is peremptory, therefore meaning that you have no discretion to deviate from the factors mentioned therein, more so that the majority in the Constitutional Court are males and the Chief Justice is a male.
3.7 This, together with your non-compliance with the factors alluded to i.e. the absence of the consideration criteria employed and candid explanation for considering Justice Zondo, questions the constitutionality of your rationality, albeit at a supposedly pre-decision stage.
3.8 In the absence of any explanation, as is the case, I am left with no option but to conclude that your decision to appoint Justice Zondo is anti-women empowerment and development in that it directly overlooks a senior, seasoned black woman, Justice Bess Nkabinde with sufficient experience and is already acting in the position of Deputy Chief Justice.
3.9 When you, Mr. Zuma spoke about women leadership of our country, and that South Africa is ready to be led by a woman, we did not realise that this was limited to your ex-wife, Nkosazana Dlamini-Zuma. Justice Bess Nkabinde is a capable black woman who also deserves us to show confidence in her and as a result, in all black women.
3.10 We are not opposed to Justice Zondo as a judge, as a matter of fact we have great confidence in him. However, it is our strong held view that the chance must be given to a black woman to inspire and advance the gender struggle against patriarchy in our judicial system and the country as a whole. In addition, the are other Justices that have served in the Constitutional Court longer than Justice Zondo, like Justice Sisi Khampepe who is also a black woman and seasoned judge.
3.11 Failure to appoint Justice Bess Nkabinde as a black woman, you are implying, directly or indirectly, intentionally or not, that as a woman, she is only fit to “act” and not be permanent.
4. We have a historic duty that each time conditions allow to advance the gender struggle against male domination, we must act with decisiveness. This is such an opportunity and your move is reinforcing male domination even when more senior black women are available; the question you must answer is, after meeting all the qualifications, what exactly should black women do to be appointed to positions of authority and responsibility? We hope, the answer will not be that they must be your ex-wives.
5. Alternatively, we hope that your preference not to appoint Justice Bess Nkabinde is not her punishment for disclosing that the Judge President of the Western Cape High Court, John Hlophe tried to influence her on the matter of your corruption charges. This, Mr. Zuma, would disqualify you from even making this appointment.
6. Appointments to Constitutional Court must be done in the interests of the best integrity of the justice system, taking into consideration constitutional imperatives as dictated to by section 174(2).
I thank you in anticipation with the hope that you will at least on this matter, act in the best conscience in accordance with your oath of office.