Like trying to sew the head back onto a chicken

by The Editor

FEATURE: Throughout Thabo Mbeki’s time as President he failed properly to consult other parties, as the Constitution requires, when making judicial appointments. But if Mbeki was bad, Jacob Zuma has been far worse. Things came to a head in August 2009, when Zuma – as prone to gaff as he is contempt – announced his decision for Chief Justice before consulting, indeed before he had even notified the relevant parties. His mistake was explained away by all and sundry but if you take a little more time to look at events, it becomes clear that it was deliberate. In this 2009 article, below, I show how.

Like trying to sew the head back onto a chicken

By: Gareth van Onselen

2 September 2012


Like the chain that is only as strong as its weakest link, so any logical analysis fails by the smallest indiscretion. Logic’s simplicity is often the consequence of much hard work and the power that resides in its application a reward one can only ever reap by being entirely consistent and absolutely thorough.

That said, if properly applied to a situation, there is no sweeter satisfaction than exposing those hidden assumptions that lurk below the surface of a poorly reasoned argument. They are the toxic half-thoughts that pollute clear thinking. To eradicate them and to then examine the nature of what remains should be the central purpose behind public scrutiny and the considered opinion of the fourth estate.

Too often, however, that requirement falls by the wayside. The reasons for this are many and complex but it suffices to say that the lure of the irrational (most often in the form of political correctness), coupled with the various habits that mark lazy thinking, are the defining characteristics of much public debate today. It is an unfortunate state of affairs, for it means that logic itself is often rendered impotent – its very purpose warped and turned on itself to produce an aberration of its true form.

Indeed, so widespread is the problem, that even the most important issues of the day – those events that concern the fundamental nature of our democracy – are regularly hijacked by poor reasoning and their true implications hidden behind a veil of distractions that range from the superficial to the profoundly disingenuous. Nowhere is this more true than with regard to the ANC government and the manner in which it explains itself to the South African public.

By way of illustration, I wish to set out the events surrounding President Jacob Zuma’s nomination of Justice Sandile Ngcobo for the position of Chief Justice. For a proper interrogation of that process reveals much about the President, his attitude towards the Constitution and the democratic procedures it advocates – a great deal of which has been lost in the insubstantial (and often unsubstantive) analysis concerning it.

By way of background

Much of the relevant information – the facts of the matter – have already been set out in two documents, both written in response to those events: a joint press statement by Helen Zille, Patricia de Lille and Mosiuoa Lekota and a joint letter to President Zuma by Helen Zille, Patricia de Lille, Mvume Dandala and Mangosuthu Buthelezi. Nevertheless, the most important of these are worth repeating here, as it is only on the basis of those facts that a full and proper analysis reveals the President’s true intent and the implications it holds.

By way of background, the South African Constitution requires that the President consults with various people and institutions before making an appointment to the position of Chief Justice. The relevant section of the Constitution in this regard is found in Chapter 8, Section 174 (3), and reads as follows:

“The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.”

I wish here to focus on the requirement that the President consult with leaders of the political parties represented in the National Assembly. This is not to dismiss the requirement that he also consults with the Judicial Service Commission – only that, as the requirement to consult with party leaders directly concerns the Democratic Alliance, I am able to speak on that particular provision with more authority.

There are two critical elements to that provision: the first is that the President consults; the second that he does so before he makes his appointment. Let us look at both of those in more detail, for they are not unrelated.

The purpose of consultation is straightforward but it is necessary to define it here because this issue turns on that definition. Consultation is a process which must involve at least two parties. It is designed to ensure that the advice, insights and opinions of one party are elicited by the other with the purpose of informing its thinking.

In other words, it is an exercise the point of which is to gather knowledge to better shape one’s judgement.

There are those who might suggest that consultation is a reference to nothing more than etiquette, a courtesy undertaken with the intention of simply informing the other party of one’s decision, but that would be wrong and to misrepresent both its connotations and denotation. It is also to defeat the very purpose of the idea, because it would require one party deliberately to ignore the advice of the other at the expense of the subject at hand. That is not consultation.

Were that the intention behind Section 174 (3), the Constitution would require the President merely to “inform” the leaders of those parties. But the Constitution was not designed to establish etiquette and good manners, rather best democratic practice. Thus, it requires the President to seek out their advice – to consult – the purpose of which is to better inform his decision.

Reinforcing this, even at the risk of redundancy, is the requirement that the President do so before he makes his appointment. Obviously one cannot consult after the fact, to do so would be to render that consultation meaningless. It is common cause that if consultation is designed to increase one’s knowledge, in order to arrive at a more considered opinion, that process must be carried out prior to arriving at a position.

In much the same fashion – and this is a critical point – one can only properly consult with an open mind – for if the purpose of consultation is to properly arrive at the best opinion, one cannot do that if the outcome is preconceived. The particular importance of this point will become apparent.

How then, do President Zuma’s actions hold up against this requirement?

The Press Club address

The key fact in this regard is his address to the South African Press Club on 6 August, in which he made the following statement:

“I have decided to nominate Justice Sandile Ngcobo as the next Chief Justice since Chief Justice Pius Langa is due to retire. I have requested advice from the Judicial Services Commission and leaders of political parties represented in the National Assembly in this regard.”

Subsequent to his address, but also on 6 August, the South African Press Association (SAPA) reported that, in explaining his choice, President Zuma stated that he had taken the decision “properly” and “objectively”. Importantly, it also reports the President as saying: “The fact of the matter is that I have appointed a judge that I believe is capable.” (The Star, independently of SAPA, also reports the President as saying this.)

There are three significant facts about the statement made in this speech:

First, the date: it was made on 6 August. More about that later.

Second, it constituted a public announcement of his intention to appoint Justice Ngcobo to the position of Chief Justice.

Third, it clearly states that, in making that announcement, President Zuma had followed the required Constitutional procedure – he had consulted the leaders of political parties and, having sought our their advice, had arrived at the conclusion that Justice Ngcobo was the best candidate.

This third point is critical and worth elaborating on. In and of itself, the excerpt quoted above unequivocally states that the President had followed the proper procedure in arriving at his decision. This is reinforced by his comments that he had taken the decision “properly” and “objectively”. His intent is crystal clear. One might fairly paraphrase it as follows:

In order to make this appointment the Constitution requires that I consult various parties. I have done this properly and dispassionately. I have sought out their advice and, after hearing it, have arrived at a conclusion. That conclusion is that Justice Ngcobo is the best candidate for the position of Chief Justice.

As will soon become apparent, however, that statement was palpably untrue.

President Zuma’s address and the announcement it contained was made on 6 August. However, the communication from his office, requesting the advice of the requisite political leaders, was only sent on 7 August – a facsimile backdated to 5 August (see the joint letter for more details in this regard). Put plainly, on 6 August President Zuma had absolutely not “requested advice” from the leaders of political parties represented in the National Assembly.

Working backwards

On face value there would appear to be two possible reasons for this. The first is that President Zuma has complete contempt for the requirements set out in the Constitution and simply stated a bold untruth, because whether or not he consulted was of no concern to him or the conclusion he would inevitably arrive at. The second is that his office is entirely incompetent and forgot to seek out the appropriate advice ahead of his announcement.

But the fact that the announcement was contained in a written speech suggests that these two options are not, in fact, mutually exclusive. Indeed, most likely they are both true.

Let us work backwards: a written speech of this kind is produced some time before the President actually speaks. In other words, someone at the Presidency, charged with formulating the President’s address to the Press Club, possibly the President himself, constructed that statement long before the President actually spoke. In order to do that, a conscious decision would have had to be taken that this opportunity constituted the right occasion to announce Justice Ngcobo’s nomination. In order to do that, one would have had to ask the question as to whether the right procedure had been followed in order to make that announcement. And in order to do that, it would have had to be confirmed that the appropriate leaders had been consulted.

At this point, things fall apart.

Because the appropriate leaders had not been consulted – their advice would only be sought a day later. Nevertheless, that statement was inserted into the speech regardless.

This tells us two further things – that even if the President had sought out their advice prior to his announcement, he would have ignored it; and that (and the backdated facsimile is testament to this) the Presidency forgot to seek out the advice in time. And, ironically, each option rests on the other to hold true: if it was incompetence, and the Presidency thought the relevant request had indeed been made when the speech was written, then he certainly was entirely unconcerned by what that advice was; and, if it was a disregard for the Constitution, and he had little regard for that advice in the first place, then the Presidency has made a mockery of his intention by sending a back-dated facsimile.

It’s a bit like a slaughterhouse trying to sew the head back onto a chicken.

There is an important point that must be made at this juncture. The notion of a ‘nomination’ – the idea that Justice Ngcobo is the President’s ‘nominee’ – is a complete misnomer, and only serves to confuse matters. The Constitution makes no reference to nominees, it is an invention of the Presidency. The President need only consult ahead of his appointment to that position. If anything, the fact that he nominated a single candidate is a further indictment of his approach to the Constitutional requirement that he consults. Why consult on only one candidate? If one is truly interested in arriving at the best possible decision, why not ask for a wider set of opinions? Certainly there was more than one person who qualified.

This idea of a nominee has detracted from the key point: which is that the President claimed to have consulted before arriving at his decision when, in fact, he had not. The form that decision took is irrelevant. It is the process leading up to it which is flawed. And it was flawed because the President failed to consult and all the available evidence suggests he would have had no regard for such consultation even if it had taken place.

This last part is evidenced by the Presidency’s response to the joint statement issued by the DA, ID and COPE. In responding to it Presidency spokesman Vincent Magwenya defended the President’s Press Club statement as illustrative of his “transparent and consultative” leadership style (a bizarre response if ever there was one) and, importantly, that: “We cannot withdraw (the nomination). The (opposition) parties should advise… and engage the president on the nominee.”

This statement gives the game away and confirms the thesis of this article.

If the President is unwilling to withdraw his nomination it means whatever advice he receives, and whether he is willing to absorb it or not, is irrelevant – in the President’s mind his nomination is final and any advice is sought out simply to confirm his decision, not to inform it. It cannot be altered. And that tells you everything you need to know. For if consultation is a serious exercise, as envisioned by the Constitution, then it must be entered into with an open mind; not to do so, as alluded to above, is to enter into the process with a preconceived outcome, which defeats its very purpose.

The President’s later statement, that he had already “appointed” Justice Ngcobo to the position might have been technically inaccurate, but with regard to intent, it couldn’t have been more precise.


So what does this all mean?

The joint letter from the DA, ID, IFP and COPE contains the following paragraph:

“The reason why the South African Constitution requires the President to consult the leaders of all political parties in the National Assembly is clear: The National Assembly consists of 400 public representatives, democratically elected to represent the interests of all South Africans. As the judiciary is an independent body – an independence epitomised by the position of Chief Justice – it is appropriate that those Members of Parliament be consulted before such an appointment is made. In much the same fashion, it is necessary to consult the JSC, a representative body both of the National Assembly and the justice system more broadly. Not to consult the members of these institutions would result in the appointment being made entirely at the discretion of the head of the executive; a situation which 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.”

Having sifted out the double-talk, the President and the Presidency’s attitude on this matter are perfectly apparent: both have absolutely no regard for the Constitutional requirement that they consult. Not only did the President fail to consult ahead of his decision but subsequent to it his office has indicated that his decision is beyond reproach. He has effectively denuded Section 174 (3) of its meaning and purpose and in plain and simple language made it quite apparent that the Chief Justice will be appointed entirely at the President’s discretion. His excuses are couched in technicalities but his intent is plain to see. There cannot be a bigger indictment of a President.

There is one final point worth making. The statement made by President Zuma was done before the South African Press Club – before the core of South Africa’s political journalists. That statement was untrue. One is forced to ask what the President’s attitude to the South African media is, that he can stand before them and make such a fundamentally problematic and disingenuous statement with next to no repercussions, no outrage on the press’s part. No indignation at being so profoundly misled. But perhaps it is not Jacob Zuma that need answer that question; perhaps it is better addressed to the members of the South African Press Club.

This article was first published on 12 August 2009.

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