President has too much power in naming judges

KRISH Govender, former co-chairman of the Law Society of South Africa, has questioned the power the president enjoys with appointments to the Constitutional Court.

And the National Association of Democratic Lawyers (Nadel) has said it intends to discuss a review of the process of appointing judges.

These developments come as tension in the legal profession mounts over appointments to the Bench.

Govender, the state attorney for KwaZulu-Natal, served on the Judicial Service Commission (JSC) until December.

This week, he suggested that the president’s power to appoint to the Constitutional Court could lead to political influence in the country’s highest court and ultimately compromise the separation of powers.

He called for the provisions of the constitution which relate to the appointment of Constitutional Court judges to be reviewed and challenged.

He was addressing delegates at the 18th Commonwealth Law Conference, held in South Africa for the first time.

He said many issues (in the constitution) needed to be better defined.

Section 174 of the constitution deals with judicial appointments.

Sub-sections one and two deal with appointments to the higher judiciary, while sub-section three gives the president the power to appoint the chief justice, deputy chief justice, and the Supreme Court of Appeal president and deputy president in consultation with the JSC and party leaders in the National Assembly.

In terms of sub-section four, the president has the power to appoint the other constitutional court judges, but he has to do so from a list of nominees provided by the JSC.

Govender said much of the controversy relating to judicial appointments stemmed from key and Constitutional Court appointments.

“To me, it’s not going to attract candidates if they are being repeatedly rejected,” he said.

Govender, whose term as co-chairman of the law society ended a week ago, is a previous vice-president of Nadel.

Nadel’s vice-president, Max Boqwana, this weekend said the association intended to discuss the issue of reviewing the judicial appointment system at its meeting next month.

Responding to the debate on transformation, Boqwana said the pool of lawyers from which candidates for judicial appointment could be drawn was waning.

His comments come after tensions during the latest sitting of the JSC peaked a week ago when Izak Smuts, who represents the advocates’ profession, resigned as a commissioner.

Smuts had compiled a document on transformation, which was meant to be discussed behind closed doors, but ended up being leaked to the media.

The document called on the JSC to stop “the charade” of interviewing white male candidates when it had no intention of appointing them because of transformation issues.