Sequence Does Not Invalidate Judge Ngcobo

By Vusi Moloi © 2009

South Africa’s opposition parties have come out with guns blazing to force the hand of President Jacob Zuma to drop his appointment of the Constitutional Judge Sandile Ngcobo as Chief Justice to replace Chief Justice Pious Langa when he retires later this year. In a joint statement issued on Friday this week on behalf of the DA (Democratic Alliance), COPE (Congress of the People) and ID (Independent Democrats) the statement referred to the South African Constitution Section 174(3) of Chapter 8 as “a critical constitutional requirement” central to the phrase “...after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly".

The Segment in Question

I reproduce this section in its entirety here:

“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.” You can access the entire Constitution of South Africa as follows:

South African Constitution


Analysis of the Segment

This writer has reviewed and analyzed the section of the Constitution in question and has found that the opposition parties are fixated on the sequence of the process and not on the constitutional requirement with respect to the eligibility, qualification, appointment and consultation with the members of parliament. They are really pulling wool over our face in a daring attempt to make us believe the unbelievable and accept the unacceptable.

In terms of the requirements President Zuma’s appointment has met them all in accordance with the constitution. However, in terms of the sequence (assuming his fax didn’t reach its destination in a timely manner) he would have reversed the order along the lines of the proverbial cart before the horse situation. The fundamental question is whether the requirements are fulfilled and in this case President Zuma has met the constitutional requirements.

Reversed Sequence Not an Infraction

The idea of reversing a sequence has never been viewed as an infraction of the constitution. When President Barack Obama was sworn in as the country's first Black President on January 20th this year, he reversed the order of the oath as a result of a prior reversal of the sequence by Chief Justice John Roberts. They didn’t have to redo the entire process and this didn't invalidate President Obama’s inauguration as the new President of the United States. That’s because the reversal of the sequence was not viewed as an infraction of the constitutional requirement.

The Canadian Constitution states the following with respect to the appointment of judges “The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.” The Governor General does this with the recommendation of the Privy Council of which the executive branch is a subcommittee.

In the article Supreme Court of Canada Appointment Process published on the MapleLeafWeb.Com website Jay Makarenko tells us “In practice, however, only the current federal Cabinet, which is a subcommittee of the Privy Council, actually advises the Governor General on Supreme Court appointments. This is usually accomplished through consultation between the Governor General and the sitting Prime Minister.” You can access the Canadian Constitution as follows:

Canadian Constitution

The Sequence of Pizza

To help you appreciate the concept of sequence, imagine going to order pizza at a pizza restaurant. You stand in line like anyone else and await your turn to be served. This is a sequence. Suppose you or anyone decides to jump the queue (not recommended) and go straight to order from the counter ahead of others before him or her. This would not constitute a legal infraction. Even though the "constitution" of the pizza store states that customers must wait in line, they will not throw you out or incarcerate you for breaking the sequence of pizza ordering. This is a concept of sequence at its simplest.

Constitutional Challenge on Sequence Laughable

If the opposition was to challenge the legality of the appointment based on sequence, the judge would have a good laugh. I don’t believe the opposition will go that far. They are hoping to achieve two things i.e. (1) to intimidate President Zuma by testing his temperament and (2) to score political points with the voters as they push for the 2014 General Elections where they hope to collectively unseat President Zuma. The opposition has calculated that if they could kill the appointment of Constitutional Judge Ngcobo, they would have scored an impressive victory.

Conclusion

The fixation of the opposition parties on the sequence is like splitting hairs. When the motherland is crying out for those who seek to contribute to the wellbeing of others, the opposition parties choose to create a fictitious crisis and shine a spotlight on it. The sons and daughters of the beautiful motherland South Africa you know what you want, pick up your tools of the trade and serve the motherland like never before. The greatest thing is to be alive for as long as you are still alive you can change a lot of things. It’s in serving others that the good seed will germinate, grow and bear fruit.

About the Author

A former South African Television Journalist, Vusi Moloi is a published author of a contextual poetry book, A Goodbye To My Little Troubles, and maintains a blog, Zulumathabo on the Internet.