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Appointment of Acting Judges Distortion

05 February 2022

The Ministry of Justice and Correctional Services has noted what appears to be a deliberate distortion of the appointment process of acting judges, of the Constitutional Court.

In terms of the Constitution of the Republic of South Africa acting appointments are made in the following manner:

Acting Appointments in the Constitutional Court Section 175 (1):

The President may appoint a woman or a man to serve as an acting Deputy Chief Justice or judge of the Constitutional Court if there is a vacancy in any of those offices, or if the person holding such an office is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice...

Acting Appointments in the High Court of South Africa Section 175 (2) :

The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve.

As and when vacancies arise in the above courts, the Constitution dictates that such vacancies should be filled by the President and the Minister respectively subject to a particular process.

It is within this context that consultations occur between the Chief Justice and/ or the Judge Presidents of the Superior Courts with the Minister.

To suggest that this process as prescribed by the Constitution is judicial capture or manipulation is disingenuous at best. The Minister is constitutionally obliged to recommend an acting appointment with the concurrence of the Chief Justice.

It follows that communication between the Minister, (Acting) Chief Justice, or a Judge President, as the case may be, to facilitate this process is not unethical or a desire to fulfill a conspiracy, but rather it is an inevitable outcome of a constitutional obligation.

The insinuation that the Minister sought to enhance the appointment-ability of a Chief Justice candidate by suggesting that the candidate be appointed to act in a vacancy in the Constitutional Court is designed not only to malign the Minister but also undermine confidence in the judiciary.

The conspiracy is not borne out by the facts, or the law. It is for this reason that the Minister did not hesitate to share all the relevant letters with the Judicial Service Commissioners. The process to appoint acting justices for the Constitutional Court occurred well before the President nominated Chief Justice candidates.

In the year in which we celebrate the 25th Anniversary of the Constitution coming into effect we call upon all South Africans from all walks of life to actively familiarize themselves with the provisions of our Supreme Law.

As highlighted by President Mandela on the 8th of May 1996 when the Constitution was adopted, this is our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions.

Issued by the Ministry of Justice and Correctional Services

Media Enquiries:
Chrispin Phiri: Spokesperson for the Ministry of Justice and Correctional Services
Cell: 081 781 2261